Witherspoon v. Mercury Freight Lines, Inc., 71-2418.

Decision Date20 March 1972
Docket NumberNo. 71-2418.,71-2418.
Citation457 F.2d 496
CourtU.S. Court of Appeals — Fifth Circuit
PartiesMcKinley WITHERSPOON, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. MERCURY FREIGHT LINES, INC. and Local No. 991 of the Teamsters, Chauffeurs, Warehousemen and Helpers Union, Mobile, Alabama, Defendants-Appellees.

Frankie Fields Smith, Mobile, Ala., Jack Greenberg, William L. Robinson, James M. Nabrit, III, Morris J. Baller, New York City, for plaintiffs-appellants; Jonathan Harkavy, New York City, of counsel.

Frank McRight, Mobile, Ala., Thomas M. Ammons, III, Mobile, Ala., for appellee Mercury Freight Lines, Inc.; Armbrecht, Jackson & DeMouy, Mobile, Ala., of counsel.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

GODBOLD, Circuit Judge:

This case concerns racially discriminatory employment practices of a motor carrier, violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and similar to the practices held discriminatory in Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir.1971), and its predecessor, Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). The District Court, in a decision handed down prior to Bing and Jones, held the carrier's policies not discriminatory. Those two cases require reversal.

No black has ever worked for Mercury as a long haul driver, even as an extra. As in Bing, the carrier has maintained a policy, albeit somewhat different in form, under which black city (i. e., local) drivers are "locked in" to their positions with no real opportunity to transfer to the more highly regarded and sought after position of long haul or over-the-road driver. Also blacks applying from outside the company for long haul driver places are not hired. While blacks are excluded, whites are hired as over-the-road drivers, both from outside the company and from the ranks of white city drivers. Blacks applying for over-the-road positions, both by transfer from city driver status and as new employees from without the company, have not been specifically turned down—they just never heard from their applications, and the record amply demonstrates that the applications never received meaningful consideration, and in some instances none at all.

The plaintiff made out a prima facie case of discrimination by the above evidence. The burden of proving absence of discrimination moved to defendant, which attempted to explain on the ground of business necessity, stating that long haul drivers must have personalities, age, family, and health backgrounds different from city drivers. But these factors are not shown to have been applied to the plaintiff or to other black applicants. Rather it appears that their applications were never given genuine consideration under any standards.

The decision of the District Court must be reversed and the cause remanded for further proceedings. The District Court is directed to define the scope and depth of the class of which the...

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11 cases
  • Sagers v. Yellow Freight System, Inc., 74--3617
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 2, 1976
    ...cases decided by this Court and other courts. Bing v. Roadway Express, Inc., 5 Cir. 1971, 444 F.2d 687; Witherspoon v. Mercury Freight Lines, Inc., 5 Cir. 1972, 457 F.2d 496; Jones v. Lee Way Motor Freight, 10 Cir. 1970, 431 F.2d 245, cert. denied, 1971, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.......
  • Stamps v. Detroit Edison Co.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 2, 1973
    ...for employees in other departments. See Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir. 1971); Witherspoon v. Mercury Freight Lines, 457 F.2d 496 (5th Cir. 1972). Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Jones v. Lee Way Motor Freight Co., supra; United States ......
  • Rodriguez v. East Texas Motor Freight, 73-2801
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 25, 1974
    ...ETMF's Memphis terminal, all of the 105 road drivers were white. Of the 131 city drivers, 43 were black.); Witherspoon v. Mercury Freight Lines, Inc., 5 Cir. 1972, 457 F.2d 496 (No black had ever worked for Mercury Freight as a long haul driver.); Hairston v. McLean Trucking Co., M.D.N.C.19......
  • U.S. v. T.I.M.E.-D.C. Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 1975
    ...Inc., 5 Cir., 1971, 444 F.2d 687 (Bing I); Belt v. Johnson Motor Lines, Inc., 5 Cir., 1972, 458 F.2d 443; Witherspoon v. Mercury Freight Lines, 5 Cir., 1972, 457 F.2d 496; United States v. Roadway Express, Inc., 6 Cir., 1972, 457 F.2d 854; Jones v. Lee Way Motor Freight, 10 Cir., 1970, 431 ......
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1 books & journal articles
  • Black Workers Inside the House of Labor
    • United States
    • ANNALS of the American Academy of Political and Social Science, The No. 407-1, May 1973
    • May 1, 1973
    ...v. Lee Way Motor Freight, Inc.,431 F. 2d 245 (10th Cir. 1970), cert. denied,401 U.S. 954 (1971) ; Witherspoon v. MercuryFreight Lines, 457 F. 2d 496 (5th Cir. 1972) ;Bing v. Railway Express, 444 F. 2d 687 (5thCir. 1971) ; Belt v. Johnson Motor Lines,458 F. 2d 443 (5th Cir. 1972) ; U.S. v. C......

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